LR. COELHO (DEAD) BY LRS. ~ v. STATE OF TAMIL NADU

84Copy pinpoint84. Justice Khanna upheld the 29th Amendment in the following terms: E "We may now deal with the Constitution (Twenty ninth Amendment) Act. This At:t, as mentioned earlier, inserted the Kerala Act 35of1969 and the Kerala Act 25of1971 as entries No. 65 and 66 in the Ninth Schedule to the Constitution. I have been F able to find. no infirmity in the Constitution (Twenty ninth Amendment) Act."

85.' In his final conclusions, with respect to the Twenty-ninth Amendment, Khanna, J.. held as follows:

G "(xv) The Constitution (Twenty-ninth Amendment) Act does not suffer from any infirmity and as such is valid."

86Copy pinpoint86. Thus, while upholding the Twenty-ninth amendment, there was no mention of the test that is to be applied to th.e legislations inserted in the H Ninth Schedule. The implication that the Respondents seek to draw from y·

l.R.COELHO(DEAD)BYLRs. v. STATE[Y.K. SABHARWAL,CJ.] 749

- the above is that this amounts to an unconditional upholding of the legislations in the Ninth Schedule. A

They have also relied on observations by Ray CJ., as quoted below, in Indira Gandhi (supra). In that case, Ray CJ. observed:

"The Constitution 29th Amendment Act was considered by this B Court in Kesavananda Bharati 's case. The 29th Amendment Act inserted in the Ninth Schedule to the Constitution Entries· 65 and 66 being the Kerala Land Reforms Act, 1969 and the Kerala Land Reforms Act, 1971. This Court unanimously upheld the validity of the 29th Amendment Act.... The view of s·even Judges in C Kesavananda Bharati 's case is that Article 31-B is a constitutional device to place the specified statutes in the Schedule beyond any attack that these infringe Part III of the Constitution. The 29th Amendment is affirmed in Kesavananda Bharati 's case (supra) by majority of seven against six Judges. D .... Second, the majority view in Kesavananda Bharati 's case is that the 29th Amendment which put the two statutes in the Ninth Schedule and Article 31-B is not open to challenge on the ground of either damage to or destruction of basic features, basic structure or basic framework or on the ground of violation of fundamental E rights." [Emphasis supplied]

88Copy pinpoint88. The respondents have particularly relied on aforesaid highlighted portions. F

89Copy pinpoint89. On the issue of how 29th Amendment in Kesavananda Bharati case was decided, in Minerva Mills, Bhagwati, J. has said thus :

"The validity of the Twenty-ninth Amendment Act was challenged in Kesavananda Bharati case but by a majority consisting of G Khanna, J. and the six learned Judges led by Ray, J. (as he then was) it was held to be valid. Since all the earlier constitutional amendments were held valid on the basis of unlimited amending power of Parliament recognised in Sankari Prasad case and Sajjan Singh 's case and were accepted as valid in Golak Nath case H

750 SUPREME COURT REPORTS (2007) I S.C.R.

A and the Twenty Ninth Amendment Act was also held valid in Kesavananda Bharati case, though not on the application of the basic structure test, and these constitutional amendments have been recognised as valid over a number of years and moreover, the statutes intended to be protected by them are all falling within Article 3 IA with the possible exception of only four Acts referred B to· above., I do not think, we would be justified in re-opening the question of validity of these constitutional amendments and hence we hold them to be valid. But, all constitutional amendments made after the decision in Kesavananda Bharati case would have to be tested by reference to the basic structure doctrine, for Parliament c would then have no excuse for saying ~that it did not know the limitation on its amending power."

90Copy pinpoint90. To us, it seems that the position is correctly reflected in the aforesaid observations of Bhagwati, J. and with respect we feel that Ray CJ. .• is not .correct in the conclusion that 29th Amendment was unanimously upheld. Since•the majority which propounded the basic structure doctrine did not unconditionally uphold the validity of 29th Amendment and six learned judges forming majority left that to be decided by a smaller Bench and upheld its validity subject to it passing basic structure doctrine.J the factum of validity of 29th amendment in Kesavananda Bharati case is not conclusive of matters under consideration before us.

91Copy pinpoint91. In order to understand the view of Khanna J. in Kesavananda Bharati (supra), it is important to take into account his later clarification. In Indira Gandhi (supra), Khanna J. made it clear that he never opined that fundamental rights were outside the purview of basic structure and observed .... as follows:

"There was a controversy during the course of arguments on the point as to whether I have laid down in my judgment in Kesavananda Bharati's case that fundamental rights are not a part of the basic structure of the Constitution. As this controversy cropped up a number of times, it seems apposite that before I conclude I should deal with the contention advanced by learned Solicitor General that according to my judgment in that case no . fundamental right is part of the basic structure of the Constitution. H I find it difficult to read anything in that judgment to justify such

LR.COELHO (DEAD) BY LRs. v. STATE [Y.K. SABHARWAL, CJ.] 751

a conclusion. What has been laid down in that judgment is that no article of the Constitution is immune from the amendatory process because of the fact that it relates to a fundamental right and is contained in Part III of the Constitution .....

.. .... The above observations clearly militate against the contention that according to my judgment fundamental rights are not a part of the basic structure of the Constitution. I also dealt with the matter at length to show that the right to property was not a part of the basic structure of the Constitution. This would have been wholly unnecessary if none of the fundamental rights was a part of the basic structure of the Constitution". C

92Copy pinpoint92. Thus, after his aforesaid clarification, it is not possible to read the decision of Khanna J. in Kesavananda Bharati so as to exclude fundamental rights from the purview of the basic structure. The import of this observation is significant in the light of the amendment that he earlier upheld. It is true that if the fundamental rights were never a part of the basic structure, it D would be consistent with an unconditional upholding of the Twenty-ninth Amendment, since its impact on the fundamental rights guarantee would be rendered irrelevant. However, having held that some of the fundamental rights are a part of the basic structure, any amendment having an impact on fundamental rights would necessarily have to be examined in that light. E Thus, the fact that Khanna J. held that some of the fundamental rights were a part of the basic structure has a significant impact on his decision regarding the Twenty-ninth amendment and the validity of the Twenty-ninth amendment must necessarily be viewed in that light. His clarification demonstrates that he was not of the opinion that all the fundamental rights F ' ... were not part of the basic structure and the inevitable conclusion is that the Twenty-ninth amendment even if treated as unconditionally valid is of no consequence on the point in issue in view of peculiar position as to majority abovenoted.

93Copy pinpoint93. Such an analysis is supported by Seervai, in his book Constitutional G Law of India (4th edition, Volume III), as follows:

"Although in his judgment in the Election Case, Khanna J. clarified his judgment in Kesavananda 's Case, that clarification raised a serious problem of its own. The problem was: in view of the H

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A clarification, was Khanna J right in holding that Article 31-B and Sch. IX were unconditionally valid ? Could he do so after he had held that the basic structure of the Constitution could not be amended ? As we have seen, that problem was solved in Minerva Mills Case by holding that Acts inserted in Sch. IX after 25 April, 1973 were not unconditionally valid, but would have to B stand the test of fundamental rights. (Paras 30.48, page 3138)

But while the clarification in the Election Case simplifies one problem the scope of amending power it raises complicated problems of its own. Was Khanna J right in holding Art. 31-B c (and Sch. 9) unconditionally valid? An answer to these questions requires an analysis of the function of Art. 31-B and Sch. 9.Taking Art. 31-B and Sch. 9 first, their effect is to confer validity on laws already enacted which would be void for violating one of more of the fundamental rights conferred by Part. III (fundamental rights) .... D But if the power of amendment is limited by the doctrine of basic structure, a grave problem immediately arises .... The thing to note is that though such Acts do not become a part of the Constitution, by being included in Sch.9 [footnote: This is clear from the provision of Article 31-B that such laws are subject to the power of any competent legislature to repeal or amend them - that no State legislature has the power to repeal or amend the Constitution, nor has Parliament such a power outside Article 368, except where such power is conferred by a few articles.] they owe their validity to the exercise of the amending power. Can Acts, which destroy the secular character of the State, be given validity and be permitted to destroy a basic structure as a result of the exercise of the amending power? That, in the last analysis is the real problem; and it is submitted that if the doctrine of the basic structure is accepted, there can be only one answer. If Parliament, exercising constituent power cannot enact an amendment destroying -G the secular character of the State, neither can Parliament, exercising its constituent power, permit the Parliament or the State Legislatures to produce the same result by protecting laws, enacted in the exercise of legislative power, which produce the same result. To -{ hold otherwise would be to abandon the doctrine of basic structure in respect of fundamental rights for every part of that basic

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:l structure can be destroyed by first enacting laws which produce that effect, and then protecting them by inclusion in Sch. 9. Such a result is consistent with the view that some fundamental rights are a part of the basic structure, as Khanna J. said in his clarification. ~ (Paras 30.65, pages 3150-3151)

In other words, the validity of the 25th and 29th Amendments B _. raised the question of applying the law laid down as to the scope .. of the amending power when determining the validity of the 24ih Amendment. If that law was correctly laid down, it did not become incorrect by being wrongly applied. Therefore the conflict between Khanna J.'s views on the amending power and on the c unconditional validity of the 29th Amendment is resolved by saying that he laid down the scope of the amending power correctly but misapplied that law in holding Art. 31-B and Sch. 9 unconditionally valid...... Consistently with his view that some fundamental rights were part of the basic structure, he ought to D have joined the 6 other judges in holding that the 29th Amendment was valid, but Acts included in Sch. 9 would have to be scrutinized by the Constitution bench to see whether they destroyed or damaged any part of the basic structure of the Constitution, and if they did, such laws would not be protected. (Para 30.65, page 3151)" [Emphasis supplied] E

94Copy pinpoint94. The decision in Kesavananda Bharati (supra) regarding the Twenty- ninth amendment is restricted to that particular amendment and no principle flows therefrom. .... F ~

95Copy pinpoint95. We are unable to accept the contention urged on behalf of the respondents that in Waman Rao 's case Justice Chandrachud and in Minerva Mills case, Justice Bhagwati have not considered the binding effect of majority judgments in Kesavananda Bharati's case. In these decisions, the development of law post-Kesavananda Bharati 's case has been considered. The conclusion has rightly been reached, also having regard to the decision G in Indira Gandhi's case that post-Kesavananda Bharati's case or after ': 24th April, 1973, the Ninth Schedule laws will not have the full protection. The doctrine of basic structure was involved in Kesavananda Bharati 's t case but its effect, impact and working was examined in Indira Gandhi's case, Waman Rao 's case and Minerva Mills case. To say that these H

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A judgments have not considered the binding effect of the majority judgment in Kesavananda Bharati 's case is not based on a correct reading of Kesavananda Bharati.

96Copy pinpoint96. On the issue of equality, we do not find any contradiction or inconsistency in the views expressed by Justice Chandrachud in Indira B Gandhi's case, by Justice Krishna Iyer in Bhim Singh's case and Justice Bhagwati in Minerva Mills case. All these judgments show that violation in individual case has to be examined to find out whether violation of equality amounts to destruction of the basic structure of the Constitution.

c 97. Next, we examine the extent of immunity that is provided by Article 3 lB. The principle that constitutional amendments which viotate the basic structure doctrine are liable to be struck down will also apply to amendments made to add laws in the Ninth Schedule is the view expressed by Chief Justice Sikri. Substantially, similar separate opinions were expressed by Shelat, Grover, Hegde, Mukherjee and Reddy, JJ. In the four different D opinions six learned judges came to substantially the same conclusion. These judges read an implied limitation on the power of the Parliament to amend the Constitution. Justice Khanna also opined that there was implied limitation in the shape of the basic structure doctrine that limits the power of Parliament to amend the Constitution but the learned Judge upheld 29th E Amendment and did not say, like remaining six Judges, that the Twenty- Ninth Amendment will have to be examined by a smaller Constitution Bench to find but whether the said amendment violated the basic structure theory or not. This gave rise to the argument that fundamental rights chapter is not part of basic structure. Justice Khanna, however, does not so say in F Kesavananda Bharati 's case. Therefore, Kesavananda Bharati 's case ... cannot be said to have held that fundamental rights chapter is not part of basic structure. Justice Khanna, while considering Twenty-Ninth amendment,

G had obviously in view the laws that had been placed in the Ninth Schedule by the said amendment related to the agrarian reforms. Justice Khanna did not want to elevate the right to property under Article 19(l)(t) to the level and status of basic structure or basic frame-work of the Constitution, that - explains the ratio of Kesavananda Bharati 's case. Further, doubt, if any, as to the opinion of Justice Khanna stood resolved on the clarification given in Indira Gandhi's case, by the learned Judge that in Kesavananda Bharati 's case, he never held that fundamental rights are not a part of the basic structure or framework of the Constitution.

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98Copy pinpoint98. The rights and freedoms created by the fundamental rights chapter can be taken away or destroyed by amendment of the relevant Article, but subject to limitation of the doctrine of basic structure. True, it may reduce the efficacy of Article 3 lB but that is inevitable in view of the progress the Jaws have made post-Kesavananda Bharati's case wh.ich has limited the power of the Parliament to amend the Constitution under Article 368 of the Constitution by making it subject to the doctrine of basic structure. B

99Copy pinpoint99. To decide the correctness of the rival submissions, the first aspect to be borne in mind is that each exercise of the amending power inserting laws into Ninth Schedule entails a complete removal of the fundamental rights chapter vis-a-vis the laws that are added in the Ninth Schedule. C Secondly, insertion in Ninth Schedule is not conttolled by any defined criteria or standards by which the exercise of power ~ay be evaluated. The consequence of insertion is that it nullifies entire Part III of the Constitution. There is no constiitutional control on such nullification. It means an unlimited power to totally nullify Part III in so far as Ninth Schedule D legislations are concerned. The supremacy of the Constitution mandates aU constitutional bodies to comply with the provisions of the Constitution. It f also mandates a mechanism for testing the validity of legislative acts through an independent organ, viz. the judiciary.

100Copy pinpoint100. While examining the validity of Article 31 C in Kesavananda E Bharati 's case, it was held that .the vesting of power of the exclusion of , judicial review in a legislature including a State legislature, strikes at the I basic structure of the Constitution. It is on this ground that second part of Article 31 C was held to be beyond the permissible limits of power of amendment of the Constitution under Article 368. F

101Copy pinpoint101. If the doctrine of basic structure provides a touchstone to test the amending power or its exercise, there can be no dobt and it has to be so accepted that Part III of the Constitution has a key role to play in the application of the said doctrine. G

102Copy pinpoint102. Regarding the status and stature in respect of fundamental rights in Constitutional scheme, it is to be remembered that Fundamental Rights are those rights of citizens or those negative obligations of the State which do' not permit encroachment on individual liberties. The State is to deny no one equality before the law. The object of the Fundamental Rights is to foster H

756 SUPREME COURT REPORTS (2007] 1 S.C.R.

A the social revolution by creating a society egalitarian to the extent that all citizens are to be equally free from coercion or restriction by the State. By enacting Fundamental Rights and Directive Principles which are negative and positive obligations of the States, the Constituent Assembly made it the responsibility of the Government to adopt a middle path between individual liberty and public good. Fundamental Rights and Directive Principles have to be balanced. That balance can be tilted in favour of the public good. The balance, however, cannot be overturned by completely overriding individual liberty. This balance is an essential feature of the Constitution.

103Copy pinpoint103. Fundamental rights enshrined in Part III were added to the c Constitution as a check on the State power, particularly the legislative power. Through Article 13, it is provided that the State cannot make any laws that are contrary to Part III. The framers of the Constitution have built a wall around certain parts of fundamental rights, which have to remain forever, limiting ability of majority to intrude upon them. That wall is the 'Basic Structure' doctrine. Under Article 32, which is also part of Part III, D Supreme Court has been vested with the power to ensure compliance of Part III. The responsibility to judge the constitutionality of all laws is that of judiciary. Thus, when power under Article 3 IB is exercised, the legislations made ·completely immune from Part III results in a direct way out, of the check of Part III, including that of Article 32. It cannot be said that the same E Constitution that provides for a check on legislative power, will decide whether such a check is necessary or not. It would be a negation of the Constitution. In Waman Rao 's case, while discussing the application of basic structure doctrine to the first amendment, it was observed that the measure of the permissibility of an amendment of a pleading is how far it is consistent with the original; you cannot by an amendment transform the original into opposite of what it is. For that purpose, a comparison is undertaken to match the amendment with the original. Such a comparison can yield fruitful results even in the rarefied sphere of constitutional law.

104Copy pinpoint104. Indeed, if Article 3 IB only provided restricted immunity and it seems that original intent was only to protect a limited number of laws, it would have been only exception to Part III and the basis for the initial upholding of the provision. However, the unchecked and rampant exercise of this power, the number having gone from 13 to 284, shows that it is no . longer a mere exception. The absence of guidelines for exercise of such power means the absence of constitutional control which results in

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destruction of constitutional supremacy and creation of parliamentary hegemony and absence of full power of judicial review to determine the constitutional validity of such exercise.

I 05. It is also contended for the respondents that Article 31 A excludes judicial review of certain laws from the applications of Articles 14 and 19 and that Article 3 lA has been held to be not violative of the basic structure. The B contention, therefore, is that exclusion of judicial review would not make the Ninth Schedule law invalid. We are not holding such law per se invalid but, examining the extent of the power which the Legislature will come to possess. Article 3 IA does not exclude uncatalogued number of laws from challenge on the basis of Part III. It provides for a standard by which laws c stand excluded from Judicial Review. Likewise, Article 31 C applies as a yardstick the criteria of sub-clauses (b) and (c) of Article 3 9 which refers to equitable distribution of resources.

l 06. The fundamental rights have always enjoyed a special and D privileged place in the Constitution. Economic growth and social equity are the two pillars of our Constitution which are linked to the rights of an individual (right to equal opportunity), rather than in the abstract. Some of the rights in Part III constitute fundamentals of the Constitution like Article 21 read with Articles 14 and 15 which represent secularism etc. As held in Nagaraj, egalitarian equality exists in Article 14 read with Article 16(4) (4A) E (48) and, therefore, it is wrong to suggest that equity and justice finds place only in the Directive Principles . . l 107. The Parliament has power to amend the provisions of Part III so as to abridge or take away fundamental rights, but that power is subject to the limitation of basic structure doctrine. Whether the impact of such amendment results in violation of basic structure has to be examined with reference to each individual case. Take the example of freedom of Press which, though not separately and specifically guaranteed, has been read as part of Article 19(l)(a). If Article 19(l)(a) is sought to be amended so as to abrogate such right (which we hope will never be done), the acceptance of respondents contention would mean that such amendment would fall outside the judicial scrutiny when the law curtailing these rights is placed . in the Ninth Schedule as a result of immunity granted by Article 3 IB. The > impact of such an amendment shall have to be tested on the touchstone of rights and freedoms guaranteed by Part III of the Constitution. In a given H

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A case, even abridgement may destroy the real freedom of the Press and, thus, destructive of the basic structure. Take another example. The secular character of our Constitution is a matter of conclusion to be drawn from various Articles conferring fundamental rights; and if the secular character is not to be found in Part III, it cannot be found anywhere else in the Constitution because every fundamental right in Part III stands either for a B principle or a matter of detail. Therefore, one has to take a synoptic view of the various Articles in Part III while judging the impact of the laws incorporated in the Ninth Schedule on the Articles in Part III. It is not necessary to 'multiply the illustrations.

c l 08. After enunciation of the basic structure doctrine, full judicial review is an integral part of the constitutional scheme. Justice Khanna in Kesavananda Bharati's case was considering the right to property and it is in that context it was said that no Article of the Constitution is immune from the amendatory process. We may recall what Justice Khanna said while dealing with the words "amendment of the Constitution". His D Lordship said that these words with all the wide sweep and amplitude cannot have the effect of destroying or abrogating the basic structure or 1' framework of the Constitution. The opinion of Justice Khanna in Indira Gandhi clearly indicates that the view in Kesavananda Bharati's case is that at least some fundamental rights do form part of basic structure of the E Constitution. Detailed discussion in Kesavananda Bharati 's case to demonstrate that the right to property was not part of basic structure of the Constitution by itself shows that some of the fundamental rights are part of the basic structure of the Constitution. The placement of a right in the scheme of the Constitution, the impact of the offending law on that right, the effect of the exclusion of that right from judicial review, the abrogation "· of the principle on the essence of that right is an exercise which cannot be ~ denied on the basis of fictional immunity under Article 3 lB.

109. In lndir~ Gandhi's case, Justice Chandrachud posits that equality embodied in Article 14 is part of the basic structure of the Constitution and, therefore, cannot be abrogated by observing that the provisions impugned in that case are an outright negation of the right of equality conferred by Article 14, a right which more than any other is a basic postulate of our constitution.

H 110. Dealing with Articles 14, 19 and 21 in Minerva Mills case, it was

LR.COELHO (DEAD) BY LR.s. v. STATE [Y.K. SABHARWAL, <;./.] 759

said that these clearly form part of the basic structure of the Constitution A and cannot be abrogated. It was observed that three Articles of our Constitution, and only three, stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power. These Articles stand on altogether different footing. Can it be said, after the evolution of the basic structure doctrine, that exclusion of these rights at Parliament's will without any standard, cannot be subjected to B judicial scrutiny as a result of the bar created by Article 3 lB? The obvious answer has to be in the negative. If some of the fundamental rights constitute a basic structure, it would not be open to immunise those legislations from full judicial scrutiny either on the ground that the fundamental rights are not part of the basic structure or on the ground that Part III c provisions are not available as a result of immunity granted by Article 3 lB. It cannot be held that essence of the principle behind Article 14 is not part of the basic structure. In fact, essence or principle of the right or nature of violation is more important than the equality in the abstract or formal sense. The majority opinion in Kesavananda Bharati 's case clearly is that D the principles behind fundamental rights are part of the basic structure of the Constitution. It is necessary to always bear in mind that fundamental rights have been considered to be heart and soul of the Constitution. Rather these rights have been further defined and redefined through various trials having regard to various experiences and some attempts to invade and nullify these rights. The fundamental rights are deeply interconnected. E Each supports and strengthens the work of the others. The Constitution is a living document, its interpretation may change as the time and circumstances change to keep pace with it. This is the ratio of the decision in Indira Gandhi case. F

111. The history of the emergence of modem democracy has also been the history of securing basic rights for the people of other nations also. In the United States the Constitution was finally ratified only upon an understanding that a Bill of Rights would be immediately added guaranteeing certain basic freedoms to its citizens. At about the same time when the Bill of Rights was being ratified in America, the French Revolution declared the G Rights of Man to Europe. When the death of colonialism and the end of World War II birthed new nations. across the globe, these states embraced rights as foundations to their new constitutions. Similarly, the rapid increase in the creation of constitutions that coincided with the end of the Cold War has planted rights at the base of these documents. H

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A 112. Even countries that have bng respected and upheld rights, but whose governance traditions did not include their constitutional affinnation have recently felt they could no longer leave their deep commitment to rights, left unstated. In 1998, the United Kingdom adopted the Human Rights Act which gave explicit affect to the European Convention on Human Rights. In Canada, the "Constitution Act of 1982" enshrined certain basic B rights into their system of governance. Certain fundamental rights, and the principles that underlie them__, are foundational not only to the Indian democracy, but democracies around the world. Throughout the world nations have declared that certain provisions or principles in their Constitutions are inviolable. c

113. Our Constitution will almost certainly continue to be amended as India grows and changes. However, a democratic India will not grow ·out of the need ·for protecting the principles behind our fundamental rights.

114. Other countries having controlled constitution, like Gennany, have D embraced the idea that there is a basic structure to their Constitutions and in doing so have entrenched various rights as core constitutional t commitments. India's constitutional history has led us to include the essence of each of our fundamental rights in the basic structure of our Constitution. E

115. The result of the aforesaid discussion is that since the basic structure of the Constitution includes some of the fundamental rights, any law granted Ninth Schedule protection deserves to be tested against these principles. If the law infringes the essence of any of the fundamental rights p or any other aspect of basic structure then it will be struck down. The extent of abrogation and limit of abridgment shall have to be examined in each case.

116. We may also recall the observations made in Special Reference No.1164 [(1965) 1 SCR413] as follows:

G " .. .[W}hether or not there is distinct and rigid separation of powers under the Indian Constitution, there is no doubt that the constitution has entrusted to the Judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights of the citizens. When a H statute is challenged on the ground that it has been passed by a

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Legislature without authority, or has otherwise unconstitutionally trespassed on fundamental rights, it is for the courts to determine the dispute and decide whether the law passed by the legislature is valid or not. Just as the legislatures are conferred legislative authority and there functions are normally confined to legislative functions, and the function and authority of the executive lie within the domain of executive authority, so the jurisdiction and authority of the Judicature in this country lie within the domain of adjudication. f If the validity of any law is challenged before the courts, it is never suggested that the material question as to whether legislative authority has been exceeded or fundamental rights have been contravened, can be decided by the legislatures themselves. C . Adjudication of such a dispute is entrusted solely and exclusively to the Judicature of this country."

117. We are of the view that while laws may be added to the Ninth Schedule, once Article 32 is triggered, thest: legislations must answer to the D complete test of fundamental rights. Every insertion into the Ninth Schedule does not restrict Part III review, it completely excludes Part III at will. For this reason, every addition to the Ninth Schedule triggers Article 32 as part of the basic structure and is consequently subject to the review of the fundamental rights as they stand in Part III. E Extent of Judicial Review in the context of Amendments to the Ninth Schedule

118. We are considering the question as to the extent of judicial review ... permissible in respect of Ninth Schedule laws in the light of the basic structure theory propounded in Kesavananda Bharati 's case. In this connection, it is necessary to examine the nature of the constituent power exercised in amending the Constitution.

119. We have earlier noted that the power to amend cannot be equated with the power to frame the Constitution. This power has no limitations or constraints, it is primary power, a real plenary power. The latter power, however, is derived from the former. It has constraints of the document viz. Constitution which creates it. This derivative power can be exercised within the four comers of what has been conferred on the body constituted, namely, the Parliament. The question before us is not about power to amend H

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A Part III after 24th April, 1973. As per Kesavananda Bharati, power to amend ;. exists in the Parliament but it is subject to the limitation of doctrine of basic structure. The fact of validation of laws based on exercise of blanket immunity eliminates Part III in entirety hence the 'rights test' as part of the basic structure doctrine has to apply.

B 120. In Kesavananda Bharati's case, the majority h~ld that the power of amendment of the Constitution under Article 368 did riot enable Parliament to alter the basic structure of the Constitution.

121. Kesavananda Bharati's case laid down a principle as an axiom c which was examined and worked out in Indira Gandhi's case, Minerva Mills; Waman Rao and Bhim Singh.

122. As already stated, in Indira Gandhi's case, for the frrst time, the constitutional amendment that was challenged did not relate to property right but related to free and fair election. As is evident from what is stated D above that the power of amending the Constitution is a species of law making power which is the genus. It is a different kind of law making power conferred by the Constitutio~. It is different from the power to frame the Constitution i.e. a plenary law making power as described by Seervai in Constitutional Law of India (4th Edn.). E

123. The scope and content of the words 'coristittierit power' expressly stated in the amended Article 36~ came up for consideration in Indira Gandhi's case. Article 329-A(4) was struck down because it crossed the implied limitation of amending power, that it made the controlled constitution uncontrolled, that it removed all limitations on the power to amend and that it sought to eliminate the golden triangle of J\rticle 21 read with Articles 14 and 19. (See also Minerva Mills case).

124. It is Kesavananda Bharati's case read with clarification ofJustice Khanna in Indira Gandhi's case which takes us one step forward, namely, that fundamental rights are interconnected and some of them form part of the basic structure as reflected in Article 15, Article 21 read with Article 14, Article 14 "read with Article 1.6(4) (4A) (4B) etc. Bharti and1ndira Gandhi's cases have to be read together and if so read the position iii law is that the -{ basic structure as reflected in the above Articles provide a test to judge the validity of the amendment by which laws are included iri the Ninth Schedule.

I.R.COELHO(DEAD)BYLRs. v. STATE[Y.K. SABHARWAL, CJ.] 763

125. Since power to amend the Constitution is not unlimited, if changes brought about by amendments destroy the identity of the Constitution, such amendments would be void. That is why when entire Part III is sought to be taken away by a constitutional amendment by the exercise of constituent power under Article 368 by adding the legislation in the Ninth Schedule, the question arises as to the extent of judicial scrutiny available to determine whether it alters the fundamentals of the Constitution. Secularism is one such fundamental, equality is the other, to give a few examples to illustrate the point. It would show that it is impermissible to destroy Articles 14 and 15 or abrogate or en bloc eliminate these Fundamental Rights. To further illustrate the point, it may be noted that the Parliament can make additions in the three legislative lists, but cannot abrogate all the lists as it would abrogate the federal structure.

126. The question can be looked at from yet another angle also. Can the Parliament increase the amending power bY amendment of Article 368 to confer on itself the unlimited power of amendment and destroy and damage the fundamentals of the Constitution? The answer is obvious. Article 368 does not vest such a power in the Parliament. It cannot lift all restrictions placed on the amending power or free the amending power from all its restrictions. This is the effect of the decision in Kesavananda Bharati 's case as a result of which secularism, separation of power, equality, etc. to cite a few examples would fall beyond the constituent power in the sense that the constituent power cannot abrogate these fundamentals of the Constitution. Without equality the rule of law, secularism etc. would fail. That is why Khanna, J. held that some of the Fundamental Rights like Article 15 form part of the basic structure.

.. 127. If constituent powerunder Article 368, the othername for amending power, cannot be made unlimited, it follows that Article 31 B cannot be so used as to confer unlimited power. Article 3 lB cannot go beyond the limited amending power contained in Article 368. The power to amend Ninth Schedule flows from Article 368. This power of amendment has to be compatible with the limits on the power of amendment. This limit came with the Kesavananda Bharati 's case. Therefore Article 31-B after 24th April, 1973 despite its wide language cannot confer unlimited or unregulated immunity.

128. To legislatively override entire Part III of the Constitution by H

764 SUPREME COURT REPORTS [2007] l S.C.R.

A invoking Article 3 I -B would not only make the Fundamental Rights overridden by Directive Principles but it would also defeat fundamentals such as secularism, separation of powers, equality and also the judicial review which are the basic feature of the Constitution and essential elements of rule of law and that too without any yardstick/standard being provided under Article 31-B. B

129. Further, it would be incorrect to assume that social content exist only in Directive Principles and not in the Fundamental Rights. Articles 15 and 16 are facets of Article 14. Article 16(1) concerns fonnal equality which is the basis of the rule of law. At the same time, Article 16(4) refers to egalitarian equality. Similarly, the general right of equality under Article 14 has to be balanced with Article 15(4) when excessiveness is detected in grant of protective discrimination. Article 15(1) limits the rights of the State by providing that there shall be no discrimination on the grounds only of religion, race, caste, sex, etc. and yet it permits classification for certain classes, hence social content exists in Fundamental Rights as well. All these are relevant considerations to test the validity of the Ninth Schedule laws.

130. Equality, rule oflaw,judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. There can be no rule of law, if there is no equality before the law. These would be meaningless ifthe violation was not subject to the judicial review. All these would be redundant if the legislative, executive and judicial powers are vested in one organ. Therefore, the duty to decide whether the limits have been transgressed has been placed on the judiciary. F

131. Realising that it is necessary to secure the enforcement of the Fundamental Rights, power for such enforcement has been vested by the Constitution in the Supreme Court and the High Courts. Judicial Review is an essential feature of the Constitution. It gives practical content to the objectives of the Constitution embodied in Part III and other parts of the G Constitution. It may be noted that the mere fact that equality which is a part of the basic ·structure can be excluded for a limited purpose, to protect certain kinds of laws, does not prevent it from being part of the basic structure. Therefore, it follows that in considering whether any particular feature of the Constitution is part of the basic structure rule of law, -(

H separation of power the fact that limited exceptions are made for limited

l.R.COELHO(DEAD)BYLRs. v. STATE[Y.K. SABHARWAL,CJ.] 765

purposes, to protect certain kind of laws, does not mean that it is not part of the basic structure.

132. On behalf of the respondents, reliance has been placed on the decision of a nine Judge Constitution Bench in Attorney General for India & Ors. v. Amratlal Prajivandas & Ors., [1994] 5 SCC 54 to submit that argument of a violation of Article 14 being equally violative of basic structure or Articles 19 and 21 representing the basic structure of the Constitution has been rejected. Para 20 referred to by learned counsel for the respondent reads as under :

"Before entering upon discussion of the issues arising herein, it is c necessary to make a few clarificatory observations. Though a challenge to the constitutional validity of 39th, 40th and 42nd Amendments to the Constitution was levelled in the writ petitions on the ground that the said Amendments - effected after the decision in Keshavananda Bharati v. State of Kera/a, [1973] D Suppl. SCR 1 - infringe the basic structure of the Constitution, no serious attempt was made during the course of arguments to substantiate it. It was generally argued that Article 14 is one of the basic features of the Constitution and hence any constitutional amendment violative of Article 14 is equally violative of the basic E structure. This simplistic argument overlooks the raison d'etre of Article 3 lB - at any rate, its continuance and relevance after Bharati - and of the 39th and 40th Amendments placing the said enactments in the IXth Schedule. Acceptance of the petitioners'

. ~- argument would mean that in case of post-Bharati constitutional amendments placing Acts in the IXth Schedule, the protection of Article 31-B would not be available against Article 14. Indeed, it F

was suggested that Articles 21 and 19 also represent the basic features of the Constitution. If so, it would mean a further enervation of Article 3 lB. Be that as it may, in the absence of any effort to substantiate the said challenge, we do not wish to• express any G opinion on the constitutional validity of the said Amendments. We take them as they are, i.e., we assume them to be good and valid. We must also say that no effort has also been made by the counsel to establish in what manner the said Amendment Acts violate Article 14." H

766 SUPREME COURT REPORTS [2007] 1 S.C.R.

A 133. It is evident from the aforenoted passage that the question of violation of Article 14, 19 or 21 was not gone into. The Bench did not express any opinion on those issues. No attempt was made to establish violation of these provisions. In Para 56, while summarizing the conclusion, the Bench did not express any opinion on the validity of 39th and 40th Amendment Acts to the Constitution of India placing COFEPOSA and B SAFEMA in the Ninth Schedule. These Acts were assumed to be good and valid. No arguments were also addressed with respect to the validity of 42nd Amendment Act.

134. Every amendment to the Constitution whether it be in the form of amendment of any Article or amendment by insertion of an Act in the Ninth ., Schedule has to be tested by reference to the doctrine of basic structure which includes reference to Article 21 read with Article 14, Article 15, etc. As stated, laws included in the Ninth Schedule do not become part of the Constitution, they derive their validity on account of the exercise undertaken by the Parliament to include them in the Ninth Schedule. That exercise has to be tested every time it is undertaken. In respect of that exercise the principle of compatibility will come in. One has to see the effect of the impugned law on one hand and the exclusion of Part III in its entirety at the will of the Parliament.

E 135. In Waman Rao, it was accordingly rightly held that the Acts inserted in the Ninth Schedule after 24th April, 1973 would not receive the full protection.

Exclusion ofJudicial Review compatible with th,e doctrine ofbasic structure- F concept of Judicial Review

136. Judicial review is justified by combination of 'the principle of separation of powers, rule of law, the principle of constitutionality and the reach ofjudicial review' (Democracy through Law by Lord Styen, Page 131 ). G

137. The role of the judiciary is to protect fundamental rights. A modem democracy is based on the twin principles of majority rule and the need to protect fundamental rights. According to Lord Styen, it is job of the Judiciary to balance the principles ensuring that the Government on the basis of number does not override fundamental rights. H

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Application of doctrine of basic structure A

138. In Kesavananda Bharati's case, the discussion was on the amending power conferred by unamended Article 368 which did not use the words 'constituent power'. We have already noted difference between original power of framing the Constitution known as constituent power and the nature of constituent power vested in Parliament under Article 368. By B addition of the words 'constituent power' in Article 368, the amending body, namely, Parliament does not become the original Constituent Assembly. It remains a Parliament under a controlled Constitution. Even after the words 'constituent power' are inserted in Article 368, the limitations of doctrine of basic structure would continue to apply to the Parliament. It is on this C premise that clauses 4 and 5 inserted in Article 368 by 42nd Amendment were struck down in Minerva Mills case.

139. The relevance of Indira Gandhi's case, Minerva Mills case and Waman Rao's case lies in the fact that every improper enhancement of its own power by Parliament, be it clause 4 of Article 329-A or clause 4 and 5 D of Article 368 or Section 4 of 42nd Amendment have been held to be incompatible with the doctrine of basic structure as they introduced new elements which altered the identity of the Constitution or deleted the existing elements from the Constitution by which the very core of the Constitution is discarded. They obliterated important elements like judicial review. They made Directive Principles en bloc a touchstone for obliteration E of all the fundamental rights and provided for insertion of laws in the Ninth Schedule which had no nexus with agrarian refonns. It is in this context that we have to examine the power of immunity bearing in mind that after

.. Kesavananda Bharati's case, Article 368 is subject to implied limitation of basic structure. F

140. The question examined in Waman Rao's case was whether the device of Article 31-B could be used to immunize Ninth Schedule laws from judicial review by making the entire Part III inapplicable to such laws and whether such a power was incompatible with basic structure doctrine. The answer was in affinnative. It has been said that it is likely to make the G controlled Constitution uncontrolled. It would render doctrine of basic structure redundant. It would remove the golden triangle of Article 21 read with Article 14 and Article l 9 in its entirety for examining the vaiidity of Ninth Schedule laws as it makes the entire Part III inapplicable at the will of the Parliament. This results in the change of the identify of the Constitution H '

768 SUPREME COURT REPORTS [2007] 1 S.C.R.

A which brings about incompatibility not only with the doctrine of basic • .l.. structure but also with the very existence of limited power of amending the Constitution. The extent of judicial review is to be examined having regard to these factors.

141. The object behind Article 31-B is to remove difficulties and not B to obliterate Part III in its entirety or judicial review. The doctrine of basic structure is propounded to save the basic features. Article 21 is the heart of the Constitution. It confers right to life as well as right to choose. When this triangle of Article 21 read with Article 14 and Article 19 is sought to be eliminated not only the 'essence of right' test but also the 'rights test' c has to apply, particularly when Keshavananda Bharti and Indira Gandhi cases have expanded the scope of basic structure to cover even some of the Fundamental Rights.

142. The doctrine of basic structure contemplates that there are certain ·parts or aspects of the Constitution including Article 15, Article 21 read with D Articles 14 and 19 which constitute the core values which if allowed to be abrogated would change completely the nature of the Constitution. Exclusion of fundamental rights would result in nullification of the basic structure doctrine, the object of which is to protect basic features cf the Constitution as indicated by the synoptic view of the rights in Part III.

E 143. There is also· a difference between the 'rights test' and the 'essence of right test'. Both form part of application of the basic structure doctrine. When in a controlled Constitution conferring limited power of amendment, an entire Chapter is made inapplicable, 'the essence of the right' test as applied in M Nagaraj 's case (supra) will have no applicability. In F such a situation, to judge the validity of the law, it is 'right test' which is more appropriate. We may also note that in Minerva Mills and Indira Gandhi's cases, elimination of Part III in its entirety was not in issue. We are considering the situation where entire equality code, freedom code and right to move court under Part III are all nullified by exercise of power to grant immunization at will by the Parliament which, in our view, is incompatible G with the implied limitation of the power of the Parliament. In such a case, it is the rights test that is appropriate and is to be applied. In Indira Gandhi's case it was held that for the correct interpretation, Article 368 ; requires a synoptic view of the Constitution between its various provisions which, at first sight, look disconnected. Regarding Articles 31-A and 31-C H (validity whereof is not in question here) having been held to be valid

I.R.COELHO(DEAD)BYLRs. v. STATE[Y.K.SABHARWAL,CJ.] 769

despite denial of Article 14, it may be noted that these Articles have an indicia which is not there in Article 31-B.

144. Part III is amendable subject to basic structure doctrine. It is permissible for the Legislature to amend the Ninth Schedule and grant a law the protection in terms of Article 31 B but subject to right of citizen to assail it on the enlarged judicial review concept. The Legislature cannot grant fictional immunities and exclude the examination of the Ninth Schedule law by the Court after the enunciation of the basic structure doctrine.

145. The constitutional amendments are subject to limitations and ifthe question of limitation is to be decided by the Parliament itself which enacts the impugned amendments and gives that law a complete immunity, it would disturb the checks and balances in the Constitution. The authority to enact law and decide the legality of the limitations cannot vest in one organ. The validity to the limitation on the rights in Part III can only be examined by another independent organ, namely, the judiciary. D

146. The power to grant absolute immunity at will is not compatible with basic structure doctrine and, therefore, after 24th April, 1973 the laws included in the Ninth Schedule would not have absolute immunity. Thus, validity of such laws can be challenged on the touchstonP, of basic structure such as reflected in Article 21 read with Article 14 and Article 19, Article 15 E and the principles underlying these Articles.

147. It has to be borne in view that the fact that some Articles in Part III stand alone has been recognized even by the Parliament, for example, ' .,. . Articles 20 and 21. Article 359 provides for suspension of the enforcement of the rights conferred by Part III during emergencies. However, by Constitution (44th Amendment) Act, 1978, it has been provided that even during emergencies, the enforcement of the rights under Articles 20 and 21 cannot be suspended. This is the recognition given by the Parliament to the protections granted under Articles 20 and 21. No discussion or argument is needed for the conclusion that these rights are part of the basic structure or framework of the Constitution and, thus, immunity by suspending those rights by placing any law in the Ninth Schedule would not be countenanced. It would be an implied limitation on the constituent power of amendment under Article 368. Same would be the position in respect of H

770 SUPREME COURT REPORTS (2007] 1 S.C.R

A the rights under Article 32, again, a part of the basic structure of the Constitution.

148. The doctrine of basic structure as a principle has now become an axiom. It is premised on the basis that invasion of certain freedoms needs to be justified. It is the invasion which attracts the basic structure doctrine. B Certain freedoms may justifiably be interfered with. If freedom, for example, is interfered in cases relating to terrorism, it does not follow that the same test can be applied to all the offences. The point to be noted is that the application of a standard is an important exercise required to be undertaken by the Court in applying the basic structure doctrine and that has to be done by the Courts and not by prescribed authority under Article 368. The existence of the power of Parliament to amend the Constitution at will, with requis;.te voting strength, so as to make any kind of laws that excludes Part III including power of judicial review under Article 32 is incompatible with the basic structure doctrine. Therefore, such an exercise if challenged, has to be tested on the touchstone of basic structure as reflected in Article 21 read with Article 14 and Article 19, Article 15 and the principles thereunder.

149. The power to amend the Constitution is subject to aforesaid axiom. It is, thus, no more plenary in the absolute sense of the term. Prior to Kesavananda Bharati, ·the axiom was not there. Fictional validation based on the power of immunity exercised by the Parliament under Article 368 is not compatible with the basic structure doctrine and, therefore, the laws that are included in the Ninth Schedule have to be examined individually for determining whether the constitutional amendments by which they are put in the Ninth Scl:edule damage or destroy the basic structure ·of· the F Constitution. This Court being bound by all the provisions of the Constitution and also by the basic structure doctrine has necessarily to scrutinize the Ninth Schedule laws. It has to examine the terms of the statute, the nature of the rights involved, etc. to determine whether in effect and substance the statute violates the essential features of the Constitution. For so doing, it G has to first find whether the Ninth Schedule law is violative of Part III. If on such examination, the answer is in the affirmative, the further examination to be undertaken is whether the violation found is destructive of the basic structure doctrine. If on such further examination the answer is again in affirmative, the result would be invalidation of the Ninth Schedule Law. Therefore, first the violation of rights of Part III is required to be determined, H

~ l.R.COELHO(DEAD)BYLRs. v. STATE[Y.K. SABHARWAL,CJ.] 771

then its impact examined and if it shows that in effect and substance, it A destroys the basic structure of the Constitution, the consequence of invalidation has to follow. Every time such amendment is challenged, to hark back to Kesavananda Bharati upholding the validity of Article 3 IB is a surest means of a drastic erosion of the fundamental rights conferred by Part III. B

150. Article 3 lB gives validation based on fictional immunity. In judging the validity of constitutional amendment we have to be guided by the impact test. The basic structure doctrine requires the State to justify the degree of invasion of fundamental rights. Parliament is presumed to legislate compatibly with the fundamental rights and this is where Judicial c Review comes in. The greater the invasion into essential freedoms, greater is the need for justification and determination by court whether invasion was necessary and if so to what extent. The degree of invasion is for the Court to decide. Compatibility is one of the species of Judicial Review which is premised on compatibility with rights regarded as fundamental. The power to grant immunity, at will, on fictional basis, without full judicial review, will nullify the entire basic structure doctrine. The golden triangle referred to above is the basic feature of the Constitution as it stands for equality and rule of law.

151. The result of aforesaid discussion is that the constitutional validity of the Ninth Schedule Laws on the touchstone of basic structure doctrine can be adjudged by applying the direct impact and effect test, i.e., rights test, which means the form of an amendment is not the relevant factor, but the consequence thereof would be determinative factor.

152. In conclusion, we hold that : F (I) A law that abrogates or abridges rights guaranteed by Part III of the Constitution may violate the. basic structure doctrine or it may not. If fom1er is the consequence of law, whether by amendment of any Article of Part III or by an insertion in the Ninth Schedule, such law will have to be invalidated in exercise of judicial review power of the G .. Court. The validity or invalidity would be tested on the principles laid down in this judgment.

(iij The majority judgment in Kesavananda Bharati's case read with Indira Gandhi's case, requires the validity of each new constitutional H

-t- 772 SUPREME COURT REPORTS [2007] I S.C.R. ,, A amendment to be judged on its own merits. The actual effect and impact of the law on the rights guaranteed under Part III has to be :....- taken into account for determining whether or not it destroys basic structure. The impact test would determine the validity of the challenge.

(iii) All amendments to the Constitution made on or after 24th April, 1973 B by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution as reflected in Article 21 read _., ~ with Article 14, Article 19, and the principles underlying them. To put it differently even though an Act is put in the Ninth Schedule by a c constitutional amendment, its provisions would be open to attack on the ground that they destroy or damage the basic structure if the fundamental right or rights taken away or abrogated pertains or pertain to the basic structure.

(iv) Justification for conferring protection, not blanket protection, on the laws included in the Ninth Schedule by Constitutional Amendments shall be a matter of Constitutional adjudication by examining the nature and extent of infraction of a Fundamental,..Right by a statute, sought + t' to be Constitutionally protected, and on the touchstone of the basic structure doctrine as reflected in Article 21 read with Article 14 and Article 19 by application of the "rights test" and the "essence of the right" test taking the synoptic view of the Articles in Part III as held in Indira Gandhi's case. Applying the above tests to the Ninth Schedule laws, if the infraction affects the basic structure then such a law(s) will not get the protection of the Ninth Schedule.

F This is our answer to the question referred to us vide Order dated 14th • September, 1999 in l.R. Coelho v. State of Tamil Nadu, [1999] 7 SCC -Jr 580.

(v) If the validity of any Ninth Schedule law has already been upheld by this Court, it would not be open to challenge such law again on the G principles declared by this judgment. However, if a law held to be violative of any rights in Part III is subsequently incorporated in the Ninth Schedule after 24th April, 1973, such a violation/infraction shall be open to challenge on the ground that it destroys or damages the .. --l, basic structure as indicated in Article 21 read with Articlel4, Article 19 'r- H and the principles underlying thereunder.

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(vi) Action taken and transactions finalized as a result of the impugned A Acts shall not be open to challenge.

153. We answer the reference in the above terms and direct that the petitions/appeals be now placed for hearing before a Three Judge Bench for decision in accordance with the principles laid down herein. B RP. Reference answered.